New Sick Leave Legislation in the UK

Employees Can Now Self-Certify for Up to 28 Days

As the Omicron variant continues to spread, the UK Parliament released emergency legislation which went into effect on December 17. The new law, referred to as the Statutory Sick Pay (Medical Evidence) Regulations 2021, prevents an employer from asking for proof of sickness until the employee has been out of work for 28 days or more.

This policy applies to all sickness absences which began on or after December 10, 2021 up until and including January 26, 2022. The goal is to maximize support for the coronavirus vaccination booster, which is available throughout the UK.  

The temporary Regulations apply to England, Wales and Scotland. 

Guidance to Employers 

When asking for a statement of fitness (sick note) for work and managing absence: 

• The only thing that has changed is the length of time before an employer can require a statement of fitness for work, which will revert to the normal period after January 27.  
• If an employee is absent longer than the normal seven days, employers cannot require workers to provide a sick note or penalize them for not providing this evidence before 28 full days of absence.  
• Claims such as discrimination from a disability and unfair dismissal is one example of the risk to employers if they penalize staff for not providing a sick not before the 28 days is over.  
• Otherwise, employers can still manage absence as they usually would i.e., they may continue to require an employee to follow their absence reporting procedures. 
• Employers are allowed to conduct welfare meetings with employees within that 28-day period if appropriate.  
• The legislation does not prohibit medical reports or occupational health reports from being requested and therefore this should not have implications on beginning, or continuing with, a fair medical capability process. 

Company Sick Pay Policy 

Employers who have a company sick pay scheme (offering pay above the minimum SSP) should continue to operate the scheme as they normally would. They can temporarily adjust their policy, such as postponing enhanced payments until a statement of fitness is given after the 28-day absence.  

They should only do so if the policy is non-contractual, applying only to new absences beginning after the change has been announced to all staff. This ensures equal application to all employees. Applying such variations should be done carefully, and on a case-by-case basis to avoid the risk of indirect discrimination.  

Communication & Sources of Support

For employers that choose to communicate this temporary change to their absence procedures to all staff, ensure the communication is clear and uniform. Include relevant and specific details such as the temporary changes to your policy, company sick pay and sources for support. Employers can leverage occupational health services and Employee Assistance Programmes (EAPs) to support employees who are struggling with their health.  

False Reporting of Absence

There may be cases where an employer suspects a sickness absence to be false. In these cases, they can write to the individual to forewarn them that the false reporting of absence and claiming of Statutory Sick Pay (SSP) is fraudulent and will be treated as a gross misconduct offense. If this claim is upheld, it could result in summary dismissal.  

However, it is advisable that this type of communication should only be delivered if there is genuine concern. Otherwise, it could lead to undue distress, or even discrimination, if there is an illness and the employer has a duty toward staff welfare.  

If employers do have concerns over false reporting of absence in the workplace, they can include a warning about how such cases will be handled. By communicating to the entire staff, individuals cannot claim to be targeted, nor made fully aware of the possible consequences in advance of their actions.  

We would recommend checking the government’s Statutory Sick Pay: employee fitness to work for any further updates. 

SSP & Covid-19 – Reimbursement Scheme Reintroduced

The UK is reintroducing the Statutory Sick Pay (SSP) reimbursement scheme for Small and Medium Enterprises (SMEs) who have employees out sick with COVID-19. More details are said to come around mid-January 2022. For now, the Statutory Sick Pay Rebate Scheme means businesses with fewer than 250 employees will be reimbursed SSP for Covid-related absences for up to two weeks per employee.

How to Make a Claim

Employers will be eligible to make a claim for SSP from now and can make claims retrospectively from mid-January 2022. Before this scheme ended in September of 2021, it allowed reimbursement for employees to be paid for the first three “waiting days”. This period of time would normally be unpaid.  

It’s important to note that this only applies if the employee is off for four or more days. If an employee has previously been out with a Covid-related absence, employers can claim again if the employee is sick again for up to two weeks. This only applies to absences from now onwards, but the claiming process won’t be in place until mid-January.